5 N.Y. 48, Blake v. Ferris

Citation:5 N.Y. 48
Party Name:BLAKE v. FERRIS and others.
Case Date:July 01, 1851
Court:New York Court of Appeals

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5 N.Y. 48



FERRIS and others.

New York Court of Appeal

July 1, 1851

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Edward Sanford, for appellant.

H. E. Davis, for respondent.


It is quite clear that the building of the sewer in question was not a city improvement, carried on by the city officers as a public work. The defendants applied to the city authorities for permission to construct the sewer at their own expense, but under the direction of the street commissioner. As the construction of the work had a tendency to disturb the then existing sewers and pavements of the city, it was proper that it should be executed under the inspection of the city officers, and this is a sufficient reason for their reserving and exercising a supervision over it, but not sufficient to make the city a principal in building the sewer. Whether the city owned the land occupied by the street, or only the right of way over it, and the improvements upon the land, it was necessary for the defendants to get permission from the city to build their sewer in the street, and it was not denied that such permission gave them a lawful right to do so, so far as the corporation was concerned; nor was it or could it be claimed that the provisions contained in the permission requiring the defendants to cause proper guards and lights to be placed at the excavation, for the prevention of accidents, and to be answerable for all damages and injuries which might be occasioned to persons, animals or property in any manner

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connected with the construction of the sewer, however beneficial it might be to the city, did or could enure to the benefit of the plaintiff in this action, or strengthen his right to recover against these defendants. For the purpose of considering the question before us, the defendants may, therefore, be regarded as the persons at whose expense, and for whose benefit the sewer in question was to be constructed, having a lawful right to construct it themselves or by their agents or servants, being responsible to third persons for all injuries occasioned by the negligent or improper manner in which they exercised that right, or the right to let by contract the execution of the whole work to some other person, who, as to the right to make the sewer, might be considered the representative of the defendants, and be protected by the permission given to them. This case shows that the defendants adopted the latter course, and either by themselves or by their agent, contracted with Gibbons to furnish the materials for, and build the sewer, in every respect according to the specifications of the street commissioner, that is to say, to construct such a sewer as the defendants were permitted to construct. That while Gibbons and his men were engaged in the execution of this contract, his men or servants, in his absence, without his knowledge, and in disregard of his directions, were guilty of the negligence which was the cause of the injury to the plaintiff's horses and carriage. Upon the close of the evidence tending to establish this state of facts, the counsel for the defendant requested his honor, the judge, to charge the jury, in substance: That if the contractor, who was engaged in constructing the sewer, when the accident happened, was exercising an independent employment, and the defendants did not interfere with the work, they were not liable. If the proposition contained in the request was a legal one, and was fairly presented by the case, the defendants were entitled to the instruction prayed for, and it was error to refuse it. The learned judge not only refused to give the desired instruction, but in his charge, which followed the refusal, seems to have

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negatived the principle sought to be recognized, by telling the jury, in effect, that if they were satisfied from the evidence that the sewer was undertaken by the defendants, and for their benefit, and that Horace Butler, in making the contract with Gibbons for building it, acted as their agent, the defendants were responsible for whatever damages might have resulted from the want of due care in the execution of the work. I know the charge was not excepted to, and I have not referred to it as erroneous, but for the purpose of showing that the error, if there was any, in the refusal to charge as requested, was not corrected by the charge. By refusing to charge, as requested, the learned judge permitted the cause to go to the jury upon the principle, that the person who undertakes the erection of a building, or other work for his own benefit, is responsible for injuries to third persons, occasioned by the negligence of the servants of the builder or the person who is actually engaged in executing the whole work, under an independent employment, or a general contract for that purpose. This presents a legal question of great practical importance, and is the only one raised by the bill of exceptions or discussed upon the argument in this court which requires to be considered in deciding this case. The refusal of the learned judge to charge as requested is attempted to be sustained partly, if not principally, by the maxim, qui facit per alium facit per se, and the consequential rule ofrespondeat superior. The rule of respondeat superior, is simple and easily understood, but it must be confessed that its application in the reported cases has produced some diversity of opinion among learned judges. It will, however, upon examination be seen, that this diversity did not arise out of any intricacy or uncertainty in the rule, or any doubt of its correctness, but has been occasioned by the variety and intricacy of the facts to which it has been applied, and the difficulty in ascertaining whether or not the relation, to which the rule is applicable, existed in the cases under consideration. Williams, J., in the case of Milligan v. Wedge, (12 Adol. and Ellis,

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737,) says "the difficulty always is, to say whose servant the person is that does the injury; when you decide that, the question is solved." The rule of respondeat superior, as its terms imply, belongs to the relation of superior and subordinate, and is applicable to that relation wherever it exists, whether between principal and agent, or master and servant, and to the subjects to which that relation extends, and is coextensive with it, and ceases when the relation itself ceases to exist. It is founded on the power which the superior has a right to exercise, and which for the prevention of injuries to third persons he is bound to exercise, over the acts of his subornates. Therefore the rule cannot be applicable to cases where no such power exists. The absolute and direct coincidence and co-existence of the rule respondeat superior with the relation to which it is applicable, and to the subject-matter to which that relation extends, is an important proposition in determining the applicability of the rule, and may be illustrated by the following cases: The case of Laugher v. Pointer, (5 Barn and Cress, 560,) was an action to recover damages for an injury done to a horse of the plaintiff, by the negligence of another person, under the following circumstances: The defendant owned a carriage and hired of a stable keeper a pair of horses and a driver, to draw it for a day, or a short time. The injury was done through carelessness of the driver in driving, while the defendant was riding in the carriage. The plaintiff brought his action against the owner of the carriage. The judge before whom the cause was tried non-suited the plaintiff. A strong attempt was made for a new trial, both in the king's bench and exchequer chamber, which failed on account of a disagreement among the judges in both courts, as to the question whose servant the driver was that did the injury, whether in the act of driving he was the servant of the defendant, who was riding in the carriage, or of the stable keeper, who sent him with the horses to draw it. In the case of Milligan v. Wedge, (12 Adol. and Ellis, 737,) the rule of respondeat superior, was again brought before the court, upon

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the following facts: The defendant, who was a butcher, had bought a bullock at Smithfield market, which is within the city of London, where those who drive cattle for others are required to be licensed. The butcher employed a licensed drover to drive the bullock to the slaughter house, which was without the bounds of the city. The drover employed a boy to drive the ox, who conducted so negligently in the business that he permitted the ox, as he was passing by the plaintiff's show-room, in which he had marble chimney pieces, &c., for sale, to run into the show-room and break the chimney pieces, for which injury the plaintiff sued the butcher. The judge, before whom the cause was tried, was of opinion that the boy was not the defendant's servant, and a verdict was given for the defendant. An attempt was made to set aside the verdict, which was unanimously denied, on the ground that the boy was not the defendant's servant. Upon this occasion, Williams, J., made the remark above quoted, and Coleridge, J., said, "the true test is, to ascertain the relation between the party charged, and the party actually doing the injury. Unless the relation of master and servant exists between them, the act of one creates no liability in the other." The case of Quarman v. Burnett and others, (6 M. and W., 497,) was similar in its facts to the case of Laugher v. Pointer. The defendants owned a carriage and hired a pair of...

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